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State v. Smith

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DESMOND SMITH, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAKEEMA MARANDO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-03-0524-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 21, 2010

Before Judges Payne and C.L. Miniman.

Defendants Desmond Smith (Smith) and Lakeema Marando (Lakeema)*fn2 appeal their convictions of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1), and false imprisonment, contrary to N.J.S.A. 2C:13-3, a disorderly persons offense. Lakeema also appeals her conviction for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-2b(2)(A), as a lesser-included offense to the armed-robbery charge in the indictment. Smith was sentenced to fifteen years in prison on an extended term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 for the aggravated assaults, and six months concurrent for the false imprisonment. Lakeema was sentenced to eight years in prison subject to NERA for the aggravated assault, four concurrent years for the theft, and six concurrent months for the false imprisonment. Various fines and penalties were imposed on both defendants. We now affirm in all respects.

I.

In September 2006, Dennis Marando (Dennis) lived with his wife Lakeema in Jersey City, New Jersey. Zyanaitha Denard, Lakeema's friend, and Johnny Robertson, Lakeema's cousin, also lived with the Marandos at that time. On September 4, 2006, Dennis was visiting friends in Pennsylvania until approximately 9:00 p.m., at which time he left the Poconos area and drove home to Jersey City, arriving at approximately 10:30 p.m. He intended to pick up some personal items because he was having problems with Denard and Robertson, and he had decided to separate from his wife and vacate the apartment.

Upon arriving at the apartment, Dennis testified that he attempted to call his friends in the Poconos to inform them he arrived home. When he picked up the phone, Denard grabbed it, unplugged it, and threw it at a window. He testified that while Denard was asking him why he was leaving Lakeema, Robertson and Desmond Smith entered the room. Robertson then allegedly said to Dennis, "'You thought you could get away with this. But I think now we got you.'" Dennis testified that the threats continued, culminating with Denard telling Lakeema via a cell phone call that "'We got Dennis here.'" Lakeema allegedly responded, "'Don't let Dennis leave. Don't let him leave until I get there.'" Denard then took Dennis into the bathroom and began questioning him about his separation from Lakeema. Robertson and Smith remained outside the bathroom, where, according to Dennis, they said they "'can't let him out until Keema gets here.'"

Lakeema arrived after Dennis had been in the bathroom for about ten minutes. Dennis said she was "mad" and "angry" and would not let him say anything. Dennis testified that Lakeema first accused him of unspecified conduct, uttering profanities, and then began "punching [him] in [his] face, all over." Denard was still in the bathroom at this time, and Robertson and Smith were attempting to enter. During the struggle, Lakeema demanded $1500 from Dennis; he told her that "it was impossible to do that at that time."

Robertson and Smith then entered the bathroom, and the light was turned off. Dennis testified that "everyone was trying to hit me. I couldn't tell who was hitting me, but I could feel the blows coming from all sides." He was punched in his right eye, which started bleeding. Lakeema said she did not care what happened to Dennis, and Robertson allegedly said, "Why can't we just smoke this nigger and forget about the whole thing?" Dennis could not estimate the number of blows he received and never indicated to police that four individuals assaulted him. He remembered his wife saying to hit him in his bad eye, on which a cornea transplant had previously been performed. He eventually pushed his way out of the bathroom and went outside.

Once outside, Dennis got into the passenger side of his car, and Lakeema, because she had the car keys, got into the driver's seat. Dennis asked Lakeema to take him to the hospital; she responded by saying, "I don't care. That's your problem now." An ambulance then arrived; however, when asked if anyone called for an ambulance, Lakeema responded, "No," and the ambulance left. Dennis did not try to get the ambulance driver's attention.

Dennis then offered to give his assailants the money, and they drove to a local automatic teller machine (ATM). Once they arrived, everyone began looking for his ATM card, which Dennis said was in his jacket in the car trunk. Dennis then ran away from the car toward a Walgreen's, where he informed a security guard that he had been assaulted. After that, he saw a police car pull into a gas station across the street; he informed the police officer about what had transpired and told him that his assailants were in his car. The police officer called an ambulance, and Dennis received medical attention at Jersey City Medical Center (JCMC). He had surgery the next morning to treat the injuries to his right eye, which included a ruptured globe through the cornea and evisceration of the contents of his eye. He underwent a second surgery on the eye on December 13, 2006. Dennis remained blind in his right eye at the time of trial.

In the early morning hours of September 5, 2006, Officer Charles Taveras of the Jersey City Police Department effected a traffic stop of a car matching the description Dennis gave to the police. The car contained Lakeema, Denard, Smith, and Robertson. The four individuals were taken into custody and transported to JCMC to be identified by Dennis. Dennis positively identified them one at a time, and they were then taken to the police station. Lakeema, Smith, Robertson, and Denard were subsequently indicted on charges stemming from this incident. These appeals followed the entry of judgments of conviction.

II.

Smith presents the following issues for our consideration:

POINT I -- THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT II -- THE TRIAL COURT INSTRUCTED THE JURY WITH AN INCORRECT ACCOMPLICE LIABLITY CHARGE.

POINT III -- THE SENTENCING COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM.

Lakeema presents the following issues for our consideration:

POINT I -- DEFENDANT, LAKEEMA MARANDO'S, CONVICTION SHOULD BE REVERSED SINCE THE PROSECUTOR'S ACTIONS THROUGHOUT THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT INCLUDING INTENTIONALLY MAKING INFLAMMATORY PREJUDICIAL REMARKS IN CLOSING ARGUMENT, PLACING INADMISSIBLE EVIDENCE BEFORE [THE JURY] AND MAKING ARGUMENTS SHIFTING THE BURDEN OF PROOF THEREBY DENYING DEFENDANT A FAIR TRIAL.

A. THE PROSECUTOR MADE OUTRAGEOUS REMARKS IN HIS CLOSING ARGUMENT WHICH WERE MADE CLEARLY WITH THE SOLE PURPOSE TO INFLAME THE JURY, AND/OR SHIFT THE BURDEN OF PROOF REQUIRING THE COURT TO ADMONISH HIM AND PROVIDE SUPPLEMENTAL CHARGES TO THE JURY.

B. THE PROSECUTOR MADE NUMEROUS COMMENTS DESIGNED TO SHIFT THE BURDEN OF PROOF FROM THE STATE TO DEFENDANTS, AND ELICITED IRRELEVANT INFLAMMATORY EVIDENCE AND/OR MIS-STATED THE LAW (WHICH WAS NOT CORRECTED BY THE COURT).

C. THE STATE'S DESTRUCTION OF EVIDENCE AND/OR FAILURE TO PROVIDE DISCOVERY DEPRIVED DEFENDANT OF [HER] DUE RIGHT PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, SEC. 1, 9 & 10).

POINT II -- DEFENDANT, LAKEEMA MARANDO'S, CONVICTION SHOULD BE REVERSED SINCE THE TRIAL COURT'S CHARGE WAS INADEQUATE AND CONFUSING THEREBY DEPRIVING DEFENDANT OF [HER] DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, [¶¶] 9, 10).

POINT III -- THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE [AND] IS BASED UPON AN INCORRECT ANALYSIS OF AGGRAVATING AND MITIGATING FACTORS.

We will first address the concerns respecting the actions of the prosecutor and will then address the motion for a judgment of acquittal, the charge to the jury, and the imposition of sentence. The scope of our review of each issue is described below.

Lakeema first challenges the prosecutor's conduct during trial, including several comments made during summation, the elicitation of certain testimony, and alleged errors in discovery. In assessing whether a prosecutor's alleged misconduct requires reversal, an appellate court should determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). In determining whether a defendant's right to a fair trial has been denied, the court should look at such factors as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken from the record, and whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322-23.

We review the denial of a motion for a judgment of acquittal by applying the same standard as binds the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Perez, 349 N.J. Super. 145, 151 (App. Div. 2002), rev'd on other grounds, 177 N.J. 540 (2003). That is, we determine "if the evidence is insufficient to warrant a conviction." R. 3:18-1. See also State v. Reyes, 50 N.J. 454, 458-59 (1967), where the Supreme Court observed:

More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

Next, when an appellant raises error in the jury charge, the charge must be read as a whole; the court will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). All that is necessary is that the entire charge be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). Where the defendant fails to object to the charge, a showing of plain error must be made when the defendant claims error on appeal.

R. 1:7-2; R. 2:10-2. Plain error is error "clearly capable of producing an unjust result." R. 2:10-2. In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969) (citation omitted), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). However, errors impacting directly on the court's obligation "to assure the jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions... are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).

Finally, the role of an appellate court in reviewing a sentence imposed by a trial judge is limited. State v. L.V., 410 N.J. Super. 90, 107 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010). The court only determines (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996) (citing State v. Roth, 95 N.J. 334, 363-65 (1984)).]

The "reviewing court may not substitute its own judgment for that of the sentencing court." Id. 493-94 (citing Roth, supra, 95 N.J. at 365). A judge who exercises discretion and complies with the sentencing principles will not be second guessed. Id. at 494 (citing Roth, supra, 95 N.J. at 365). Thus, the appellate court may modify a defendant's sentence when it is convinced the sentencing judge was "'clearly mistaken.'" L.V., supra, 410 N.J. Super. at 107 (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)). A judge is "clearly mistaken" where "the facts of th[e] case make the sentence clearly unreasonable so as to shock the judicial conscience." Ibid. (internal quotations and citations omitted).

III.

A.

Lakeema alone argues that she was denied a fair trial when the prosecutor made allegedly improper comments during summation. The first set of comments challenged on appeal reads:

MR. GONZALEZ: Counsel, Your Honor, ladies and gentlemen of the jury, it is what it is. It is what it is. Those were the words of Lakeema Marando after she and the three co-defendant[s], Zynaitha Denard, Desmond Smith and Johnny Robertson agreed that they would rob Dennis Marando at 12A Rose Avenue on September 4th, 2006.

They kept him in the apartment, kept him in his room and, then, led him unsuspectingly into the bathroom, under the pretense of having a conversation. Like an unsuspecting puppy dog at a shelter being taken to the euthanasia table. They led him --

MR. GUALANO: Objection, Judge.*fn3

....

THE COURT: Sustain to euthanasia table. Please the jury will disregard that statement. Let's concentrate on the facts here please.

MR. GONZALEZ: They led him into that room unsuspectingly, the pretense of talking.

Prior to that they had agreed through the phone that they were going to hold him there.

MR. GUALANO: Judge, I'm going to object. That's no where in the case.

THE COURT: Sustained, the jury will disregard. Your recollection of the evidence is what controls, sir -- ladies and gentlemen. Please, sir, stay with the facts, ok?

Characterizing the prosecutor's comments as "outrageous," Lakeema contends that these remarks "clearly could have only been made to prejudice the jury against defendants and/or improperly solicit sympathy for the alleged victim."

Lakeema also challenges additional comments made later in the summation, which read:

MR. GONZALEZ: His eye was coming out of his head. You have to use your common sense, ladies and gentlemen, what would you do in that situation? You have four individuals against one. Four against one in that car in that apartment. Do you have a choice? Do you have a choice?

THE COURT: Sorry Mr. Prosecutor, jury will disregard what you would do in that particular situation. You're not putting yourself in the situation, ladies and gentlemen. You're objectively analyzing facts as a reasonable person would. Do not put yourself in the position of anybody in this case. Thank you.

Despite acknowledging that the court sustained defense counsel's timely objections and that it gave this latter instruction on its own, Lakeema claims that the alleged impropriety of the statements nonetheless requires reversal.

In the second section of Point I of her brief, Lakeema again challenges certain comments made by the prosecutor. The challenged portion of the summations reads as follows:

Dr. Cinotti said, yes, a fist is considered a blunt force and a fist to an eye could have caused that injury. Especially in the weakened state that it was in because of the previous surgery.

Now, ladies and gentlemen, you may be wondering well, how is this serious to him if he already had problems with his eye?

Well, Dennis Marando told you what his vision was. He told you it was 20/50. And Dr. Cinotti confirmed that after his first surgery.

What did he tell you here? He has no use of his right eye. No use. Yes, he has it, it's in tact [sic], it's in his body. No function whatsoever.

So talk about well, you know, could this surgery have [a]ffected it? Yes. But you know what ladies and gentlemen, you take your victim as you find him. And all four of those defendants have to take Dennis Marando as they found him.

According to defendant, the underscored phrase is a civil-law concept inapplicable to the instant matter that shifted the burden of proof "away from the State to prove the purposeful intent required to cause 'serious bodily injury'" pursuant to the aggravated-assault statute.

The next challenged portion reads:

Now, defense counsel mentioned this numerous times in their [c]losing that this was just a domestic violence -- domestic dispute case, and that it has nothing to do with anything else. It has nothing to do with a robbery or anything of that nature.

Well, in domestic violence cases what have we heard? What do you hear a lot of times? Well, what is it? It's the victim's fault. The victim participated. It's all his fault. He's on trial here.

He's not on trial, ladies and gentlemen. The four of them are on trial. The four defendants are on trial. You have to determine whether he's credible, but he's not on trial. He has to come in here and provide testimony to you which you believe to be credible and you must determine whether or not that's the case and whether that meets the elements of the offenses.

Lakeema argues that these statements were improper because (1) reference to "domestic violence" cases is generally not fair comment and (2) stating that defendants were on trial and Dennis was not on trial suggested defendants "had some burden to prove or disprove what he said." In this regard, Lakeema claims that saying "the four defendants are on trial" was an attempt to comment on their exercise of their right to remain silent.

Finally, the last portion of the prosecutor's summations challenged by Lakeema reads:

MR. GONZALEZ: And, also, you heard from Dr. Cinotti that there is a document in his -- in Dennis Marando's medical records, which, according to Dr. Cinotti just reading off the records says that there was alcohol. Dennis Marando told you I wasn't drinking that night. That's what he told you.

Now, let's look at, we never heard the amount, we never --

MR. SERTERIDES: Judge, objection.*fn4

....

THE COURT: Right. Objection is overruled....

....

PROSECUTOR: Now, you heard a lot from defense counsel about things we didn't know, things we don't have. There is something called truth. It does exist. You can find it, and you'll have to find it. It does exist....

....

THE COURT: I just want to make one comment, ladies and gentlemen, so that there's no -- so that this is clear. The S[t]ate has the burden to prove all the elements beyond a reasonable doubt. The State has the burden to prove -- to come forward with evidence. The defendant has no such burden.

So if there is an issue as to whether or not, for example, that there was alcohol consumed. The burden is not upon the defense to show that any alcohol was consumed.

Lakeema avers that the underscored phrase above "was not simply fair comment in response to the defense argument that the State has failed to meet its burden of proof." She claims that the statement left the impression that defense counsel attempted to divert the jury from the truth as a trial tactic.

The State generally argues that the prosecutor's actions did not constitute prosecutorial misconduct. The State posits that the prosecutor's comments in summation were de minimis in nature and when taken as a whole, "did not taint the jury's finding of guilty beyond a reasonable doubt." The State contends that the prosecutor's remarks were not capable of producing an unjust result and were merely the prosecutor's own descriptions of the trial testimony. As such, the State argues that the statements were de minimis in light of the State's evidence against Lakeema.

Regarding the challenges to the prosecutor's statements that Lakeema raises in Point I.B., the State argues that the prosecutor's comments were consistent with the evidence adduced at trial. The State also contends that the statement "you take your victim as you find him" had no bearing on the jury's deliberations because the State's evidence showed Lakeema's intent to cause "serious bodily injury" under the aggravated-assault statute.

Prosecutors "are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82 (citation omitted). As such, they "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. However, during summations a prosecutor is "duty bound to confine his comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Acker, 265 N.J. Super. 351, 357 (App. Div.) (citing State v. Marks, 201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986)), certif. denied, 134 N.J. 485 (1993). To warrant reversal of a conviction, a prosecutor's statements must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958). Furthermore, a prosecutor's remarks may be harmless if they are only a response to remarks made by defense counsel. State v. DiPaglia, 64 N.J. 288, 297 (1973).

As stated above, a court will examine four factors to determine if a prosecutor's comments denied a defendant the right to a fair trial: (1) whether defense counsel made a timely objection; (2) whether the remark was withdrawn promptly; (3) whether the trial judge ordered the remarks stricken from the record; and (4) whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322-23. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial" because a failure to timely object indicates that trial counsel did not consider the remarks prejudicial when made and a failure to timely object deprives the trial court of an opportunity to cure. Timmendequas, supra, 161 N.J. at 576. See also State v. Macon, 57 N.J. 325, 333 (1971) (stating that where an objection is not made, the court may "infer from the failure to object below that in the context of the trial the error was actually of no moment"). "Even if defense counsel fails to object, '[a] prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved.'" Timmendequas, supra, 161 N.J. at 576 (quoting State v. Long, 119 N.J. 439, 483 (1990)).

In her appeal, Lakeema challenges four separate portions of the prosecutor's summation to which either defense counsel made a timely objection that the court sustained and instructed the jury to disregard, or the court sua sponte instructed the jury to disregard the statement: the "euthanasia" comment; the comment that defendants had agreed on the phone to hold Dennis until Lakeema's arrival; the comment about the jurors placing themselves in the victim's situation; and the comments about the "truth."

We are satisfied the prosecutor's conduct was not "so egregious that it deprived... defendant of a fair trial." Frost, supra, 158 N.J. at 83. Although it is true that the prosecutor did not promptly withdraw the comments and the trial judge did not strike the remarks from the record, the judge certainly sustained the timely objections by defense counsel and ordered the jury to disregard the statements or sua sponte instructed the jury to disregard the statements, thereby comporting with the requirements of Ramseur, supra, 106 N.J. at 322-23. The instructions cured any prejudice to Lakeema's right to have the jury fairly evaluate the merits of her defense. Timmendequas, supra, 161 N.J. at 575. We find no merit to her concerns in this regard.

Defendant also challenges certain statements to which an objection was not raised at trial. The first involves the statement that "you take your victim as you find him," and the second indicates if it was a domestic violence situation as defense counsel suggested, nonetheless defendants, not Dennis, were on trial. Of critical importance is that defense counsel did not raise an objection to these statements at trial, thereby creating an inference that the remarks were not prejudicial, id. at 576, and "in the context of the trial the error was actually of no moment," Macon, supra, 57 N.J. at 333. We are satisfied that is the case here. The jury knew Dennis had a weakened eye, the events could be characterized as a domestic violence situation, and Dennis certainly was not on trial.

Any possibility that any of these comments caused the jury to think that the burden of proof shifted to the defense was cured by the numerous instructions by the judge that the State had the burden to prove each crime beyond a reasonable doubt to sustain a conviction. In the context of the entire trial and summation, these alleged errors were "actually of no moment." Macon, supra, 57 N.J. at 333.

B.

Lakeema argues that the prosecutor made numerous other comments and elicited testimony designed to shift the burden of proof from the State to defendants. Lakeema first contends that the prosecutor elicited improper testimony from Dr. Cinotti, Dennis's treating physician. That testimony, including the parts omitted by defendant in her brief, reads as follows:

Q: Now, did somebody -- with the injuries that you discussed that [Dennis] has, does that person face any additional risk in the future? Obviously you said that he lost his vision. Does he face any other risk as a result of the injury?

A: Yes. It's very common for these type of injuries once the eye goes to no light perception for it to shrivel up. We call that [p]tysis (phonetic). The eye, basically, just folds in on itself and becomes a very cosmetic problem.

The eyes in some -- in some individuals become very painful to the point where we have to remove the eye, called a nucleation.

And, then, the last, which is a very rare instance, when you have a severe injury to one eye it can effect the other eye years, and many years later a disease called sympathetic opthalmia (phonetic).

Lakeema contends that allowing the prosecutor to place the concept of a rare disease that was unlikely to occur before the jury was in error and doing so permitted the jury to speculate that Dennis might go blind in both eyes. She argues that this testimony in combination with the remark that "you take your victim as you find him" shifted the burden of proof away from the State to prove Lakeema had purposeful intent to cause serious bodily injury. We are not persuaded that it did anything of the sort. The jury was thoroughly charged on the requisite mens rea, and we presume it followed the judge's charge. State v. Savage, 172 N.J. 374, 394 (2002).

During the jury instructions, the trial court repeatedly directed the jury that, for it to find defendants guilty of a crime, the State bears the burden of proof. Perhaps the best example of this occurred at the start of the jury charge before any instructions on the substantive crimes were given:

The burden of proving each and every element of the charge beyond a reasonable doubt rests with the State. It never shifts to the defense.

The defendant in a criminal case has no obligation or duty to prove his or her innocence or offer any proof relating to their innocence. The [p]rosecution must prove its case by more than a mere preponderance of the evidence. Yet, not necessarily to an absolute certainty.

The State has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases. There you were told, only that it was necessary to prove that a fact is more likely true than not true, tip the scales in your favor -- in that person['s] favor.

In criminal cases the State's proof must be more powerful than that. It must be proof beyond a reasonable doubt.

Even if the court had not continued to inform the jury that the State had the burden of proof beyond a reasonable doubt, this instruction would have been enough to remedy any alleged prosecutorial misconduct.

Lakeema next argues that there was a misstatement of law as to aggravated assault and accomplice liability, and since the jury did not make any findings as to whether she was guilty individually or as an accomplice, it is unknown on what basis she was found guilty. Lakeema then delves into the statutory language, eventually concluding that for her to be guilty as an accomplice to aggravated assault, the State would have to prove she acted with the purpose of promoting the aggravated assault. The arguments are an attempt to prove that the prosecutor impermissibly shifted the burden of proof to defendant.

To convict Lakeema of aggravated assault, be it directly or as an accomplice, the State was required to prove that she attempted to cause serious bodily injury, State v. Mingo, 263 N.J. Super. 296, 305 (App. Div. 1992) (D'Annunzio, J., dissenting), rev'd, 132 N.J. 75 (1993) (adopting the dissenting opinion of Judge D'Annunzio), or acted with the purpose that someone else engage in conduct constituting aggravated assault, Savage, supra, 172 N.J. at 393. As the State points out, the evidence adduced at trial proves that Lakeema had the purpose of causing an aggravated assault when she urged her co-defendants to hit Dennis's bad eye. There is no merit to this argument.

In the third section of her first point, Lakeema argues that the State deprived her of due process when it destroyed evidence and/or failed to produce discovery. Defendant cites the following colloquy as the genesis of this error:

MR. GONZALEZ: And the main reason why [Lakeema and Dennis] were separating, as I believe [Dennis] will tell you, is that Zyanaitha Denard and John-John Robertson had been living in that apartment. They were residents in the apartment in which Dennis... and Lakeema... were on the lease. And Dennis wasn't too happy about that.

COUNSEL: Judge, I'm going to object. Can I be heard at sidebar?

THE COURT: All right.

THE COURT: Yes, sir?

COUNSEL: Judge, (indiscernible) my client was ever on the lease and that there was (indiscernible) --

MR. GONZALEZ: Your client wasn't on the lease. (Indiscernible).

COUNSEL: I'm sorry, Judge. I thought I heard --

THE COURT: Okay.

COUNSEL: Regardless, -- regardless. I didn't -- I did not have any of that in discovery and, if so, I would have gotten a copy of the lease to see when it was going to expire, who was paying the rent and who was obligated.

THE COURT: I think that this should have all been in discovery.

MR. GONZALEZ: Some of this is very new, Judge.

COUNSEL II: This is all new. A lot of this new. I've never even heard any of this stuff. My client tearing a -- a phone line out? That -- that's not in the discovery.

Lakeema contends that the evidence was material because it "clearly impacted on the credibility of the State's only witness. The defense was prejudiced by the inability to properly prepare to meet such evidence."

The State asserts that the lease "does not speak towards" Lakeema's guilt and was immaterial to the jury's deliberations. The State points out that Lakeema did not assert that the lease contained exculpatory evidence. According to the State, Lakeema did not meet her burden of showing that the lease was withheld from her and that she was deprived of her due process right to a fair trial.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that Lakeema's arguments in this respect "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We see no violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963).

IV.

We turn now to Smith's argument that the judge improperly denied his Rule 3:18-1 motion for acquittal at the close of the State's case because the judge applied the incorrect legal standard to his application. The motion was heard on October 2, 2007.

Smith argued that the only evidence against him was that he was present in the apartment; he was trying to enter the bathroom by breaking the door down while there was a fracas occurring in the bathroom among Dennis, Lakeema, and Denard; Dennis had to push past him to get out of the bathroom; and after Dennis and Lakeema sat in Dennis's car for thirty minutes until Dennis agreed to withdraw money from his bank, Smith got into the car with them. He urged that these facts could not support a finding of guilt on any of the charges against him, either as an accomplice or a principal and sought a judgment of acquittal.

The State responds that the judge did apply the correct legal standard and that the evidence was sufficient to submit the case to the jury.

Rule 3:18-1 provides:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

In State v. Reyes, 50 N.J. 454, 458-59 (1967), the court held:

Treating first of the motion at the conclusion of the prosecution's evidence, the broad test for determination of... an application [for a judgment of acquittal] is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. R.R. 3:7-6. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

In deciding the issues before him, the judge quoted Rule 3:18-1 and paraphrased Reyes. Yet, defendant urges the judge erred when he went on to say:

So the standard is well established. It really is the result of the case law, and Court Rule 3:18 that a [c]court must cull through the record and find if there is evidence, which is reasonably credible before this jury that a jury could find all the relevant elements -- the relevant elements of each of the crimes charged have been, could be found by a jury, at least on a prima facie level.

And that's the level I'm concerned about now. Not proof beyond a reasonable doubt. But whether there's prima facie evidence before me now that a reasonable jury could find guilt of each of these charges.

Quite obviously, the rejection of "beyond a reasonable doubt" in this passage was erroneous. However, it is always our task in reviewing a ruling on a Rule 3:18-1 motion to apply the standards of Rule 3:18-1 and Reyes to the evidence adduced by the State and decide the issue de novo.

Dennis testified that Smith and Robertson came into the bedroom where Denard was speaking with him. Smith stood by the window; Robertson by the door. Smith told Dennis they were "going to beat [him] up and [Smith was] going back to the Heights and nobody's going to find him." After Denard spoke to Lakeema, Lakeema told her not to let Dennis leave until she got there. Denard took Dennis to the windowless bathroom and closed the door, while Smith and Robertson stood outside the bathroom door and talked to each other, saying, "We can't let him out until Keema gets here."

Dennis was in the bathroom for about ten minutes before Lakeema arrived, and all the while Smith and Robertson were outside the door. Lakeema then went into the bathroom. Lakeema was raging, angry, hitting Dennis, and screaming profanities. Lakeema was punching his face and elsewhere. Dennis got up from the toilet seat and blocked the door while Smith and Robertson were trying to break the door to get into the bathroom. Lakeema then started to demand that Dennis give her $1500; he agreed, but said he could not get it that late at night. By then Smith and Robertson broke into the bathroom, someone turned out the light, there was a big struggle, and everyone was trying to hit Dennis. Before he knew what was happening, he was in severe pain and his right eye was bleeding. The beating continued for five to ten minutes. Dennis finally pushed his way out of the bathroom, although Smith kept pushing him back. He continued to struggle with the four defendants all the way out of the apartment and down to the street while he was begging to be taken to the hospital. He managed to get into the passenger seat of his car with his wife in the driver's seat because she had the keys. Robertson and Smith kept trying to get into the car, but Dennis locked his door. They were in the car for almost thirty minutes, while Dennis begged to be taken to the hospital. He finally agreed to get them money so they would let him go. Lakeema's three co-defendants got into the car, and Smith drove everyone to an ATM. They would not allow Dennis to withdraw the money, demanding his card and access code. Lakeema and Robertson got out of the car to retrieve his card from his jacket in the trunk, but could not find it. Then Smith and Denard went to help look for it and Dennis escaped. Robertson chased him unsuccessfully.

This testimony was more than sufficient to establish beyond a reasonable doubt that Smith was guilty, as a principal or accomplice, of using force upon Dennis in the course of attempting to commit a theft, contrary to N.J.S.A. 2C:15-1a. It also establishes beyond a reasonable doubt that Smith was guilty, as a principal or an accomplice, of unlawfully removing Dennis from his residence for the purpose of facilitating the commission of a robbery and failed to release him unharmed, contrary to N.J.S.A. 2C:13-1b. Further, the evidence was sufficient to prove beyond a reasonable doubt that Smith attempted to cause serious bodily injury beyond a reasonable doubt, contrary to N.J.S.A. 2C:12-1b(1). Finally, the evidence establishes beyond a reasonable doubt that Smith conspired with his three co-defendants to commit the aforesaid crimes, contrary to N.J.S.A. 2C:5-2. There is no merit to Smith's arguments to the contrary.

V.

In her second point on appeal, Lakeema argues that her conviction should be reversed because "the trial court's charge was inadequate and confusing" and thus deprived Lakeema of her due process rights. Lakeema admits that the court's instructions were "legally correct" and "consistent with the model jury charges." However, she claims that because of the prosecutor's comment that "you take your victim as you find him," the charge was inadequate to inform the jury how to decide the issue of causation and accomplice liability. Lakeema takes particular issue with the instructions on aggravated assault, arguing that the judge did not mold the "instructions so that the jury could understand that, in order for [Lakeema] to be an accomplice to the aggravated assault, the intent had to include an attempt to purposely cause, or attempt to cause serious bodily injury (or significant injury) and not to simply purposely engage in assault." Lakeema claims the jury charges constituted reversible plain error and seeks a new trial.

Smith urges that the judge plainly erred because he used the wrong model accomplice liability charge. The charge he used was applicable to cases where there are no lesser-included offenses, which has no "language explaining that one defendant can hav[e] a different or lesser degree of culpability than another defendant." As a result, the judge failed to comply with State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). He urges that the judge thus failed to focus the jury's attention on whether Smith's purpose was the same as his co-defendants.

The State asserts that the "trial court correctly charged the jury and did not deprive... [Lakeema] of her due process right to a fair trial." Pointing to the judge's charges to the jury, the State explains that the judge gave "a lengthy and satisfactory jury instruction as to all elements of the crimes charged." The State urges that the judge gave specific examples of the difference between accomplice liability, principal liability, and intent. It argues that the charge, as a whole, adequately instructed the jury.

As to Smith's claim, the State urges that its theory of the case was that all four "defendants were equally guilty as principals and accomplices" and the judge correctly summarized the State's position. It urges that the charge that applies to lesser-included offenses was not consistent with the State's or Smith's theories of the case. Specifically, Smith's theory was that he was merely present and did not participate in any of the criminal acts. As such, State v. Morton, 155 N.J. 383, 422 (1998), does not require that the charge be tailored to Smith's mere-presence of defense.

The judge gave very thorough charges to the jury. As is relevant here, he instructed the jury on how a person may be found guilty individually and as an accomplice; the elements of criminal intent; the definition of "purposely"; the elements of aggravated and simple assault; and the relationship of the general charges of accomplice liability with aggravated assault.

Proper jury charges are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). The judge must give a "plain and clear exposition of the issues." Id. at 288. "The charge must provide a 'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" State v. Concepcion, 111 N.J. 373, 379 (1988) (quoting Green, supra, 86 N.J. at 287-88). "[E]rroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990) (citations omitted). However, all that is necessary is that the entire charge be accurate. Thompson, supra, 59 N.J. at 411.

When reading the jury charges as a whole, as the court is required to do, Wilbely, supra, 63 N.J. at 422, it is apparent that the charges were not "clearly capable of producing an unjust result," Rule 2:10-2. Lakeema admits that the charges were legally correct and consistent with the model charges; under Thompson, supra, 59 N.J. at 411, this is all that was required. Smith employed a mere-presence defense, and the State's theory of the case was that all four defendants were equally guilty as principals or accomplices. Any confusion on the part of the jury that the prosecutor's statement may have caused was rectified when the judge instructed the jury on the element of "serious bodily harm":

Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

Here the State contends the loss of the use of the right eye.

It's not necessary in this charge that serious bodily [injury] was inflicted, rather that the defendant's purpose was to inflict serious bodily injury purposely by their own conduct or as an accomplice with shared criminal intent.

So the elements that the State must prove beyond a reasonable doubt:

1) That they were present... as the actor/the perpetrator.

2) Attempted to cause serious bodily injury or caused serious bodily injury purposely.

Next, that the defendant acted purposely.

And, last, that defendant acted by... his own conduct, her own conduct, purposely or as an accomplice with shared criminal intent, always purposely. [(Emphasis added.)]

This jury charge was legally correct, was appropriately tailored, and was consistent with the law of aggravated assault. See Savage, supra, 172 N.J. at 393 (acting with the purpose that someone else engage in conduct constituting aggravated assault suffices for conviction on basis of accomplice liability); Mingo, supra, 263 N.J. Super. at 305 (attempt to cause serious bodily injury suffices for conviction for aggravated assault). Based on the foregoing, the jury charges were not "clearly capable of producing an unjust result." R. 2:10-2. The arguments of Lakeema and Smith are not persuasive.

VI.

We turn to the issue of sentencing. In her final point on appeal, Lakeema argues that her sentence was excessive because the trial court incorrectly analyzed the aggravating and mitigating factors. She avers that the trial judge failed to apply mitigating factors nine*fn5 (character and attitude of defendant indicate she is unlikely to commit another offense) and eleven*fn6 (imprisonment would be excessive hardship on defendant or dependents). Lakeema also argues that the judge rendered inconsistent findings with respect to his application of the aggravating and mitigating factors. Lakeema reasons that since the judge found her to be remorseful and expressed that he thought she had learned from this, he could not have logically found a need to deter Lakeema and others. As such, Lakeema posits that "clearly there is a reduced need, or no need, for specific deterrence of [her]." She also claims that general deterrence should have been a "much lesser consideration," because this was a domestic situation involving people acting on emotion. She requests this matter be remanded for re-sentencing.

The judge first decided to treat Lakeema as a first offender, a mitigating factor he cited in her favor. Next, he cited the "cruelness of the act" and "the fact that [Dennis] was, particularly, vulnerable" as aggravating factors. The "greatest factor" was "the need to deter [her] and others from this." Regarding additional mitigating factors, the judge found that Lakeema showed remorse and that her "character and attitude is such that I think you have learned from this and would not do this again." He considered Lakeema's lack of a prior record, but noted there was a presumption that she go to prison. He also stated that he considered Dennis's continuing interaction with defendant, including letters in which he expressed his desire to give Lakeema a second chance. He found that the "aggravating factors clearly and substantially outweigh the mitigating factors" and sentenced Lakeema to an aggregate eight-year prison term subject to an eighty-five percent parole disqualifier with credit for time served. The judgment of conviction lists aggravating factors one,*fn7 two,*fn8 and nine,*fn9 mitigating factor seven,*fn10 and remorse as an additional mitigating factor.

The evidence at trial and in the presentence report clearly supports the factors found and not found at sentencing. It is not our province to second-guess the sentencing judge's determination unless a sentence is "clearly unreasonable so as to shock the judicial conscience." L.V., supra, 410 N.J. Super. at 107 (internal quotations and citations omitted). Such was not the case here.

Smith urges that the judge mistakenly exercised his discretion to sentence Smith to an extended term. He urges that our Supreme Court expressed "that 'relatively few convictions will warrant' persistent offender extended terms," quoting State v. Dunbar, 108 N.J. 80, 89 (1987). He predicates his argument on the disparity between his fifteen-year term to the six-, seven-, and eight-year terms imposed on his co-defendants.

We find no merit to this argument. Smith was adjudicated a delinquent once and was convicted seven times on indictable offenses. He had been repeatedly sentenced to terms of four to seven years; none of the sentences deterred his criminal conduct. We can find no abuse of discretion in the sentence imposed.

Affirmed.


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